England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ISLEWORTH CROWN COURT
HHJ Oliver
T20127024

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/12/2012

Lord Justice Treacy:

1. On 20^th January 2012 in the Crown Court at Isleworth this Appellant pleaded guilty to possession of an identity document, namely a false French passport, with improper intention contrary to Section 4(1) and (2) of the Identity Documents Act 2010. Leave to appeal against conviction has been granted by the single judge.
2. The Appellant was sentenced to 12 months imprisonment with time on remand ordered to count towards sentence. As a result of receiving that custodial term he is liable to automatic deportation pursuant to Section 32 of the UK Border Act 2007.
3. The Grounds of Appeal assert that the Appellant pleaded guilty having not been advised of the defence available under Section 31 of the Immigration and Asylum Act 1999, in circumstances where it is argued that he had a reasonable prospect of successfully relying upon such a defence.

The Appellant's Case

4. The Appellant asserts that he fled Iran on 24^th December 2011 in fear of his life, following an incident during which he was attacked by the Basij (Morality Police) for expressing anti-government sentiments. This was against a background of his having previously been involved in anti-regime activities whilst a student at the university of Tabriz, which had led to his arrest and detention by the Iranian authorities for 3 months in 1999. He had also been tortured at that time. He also claims to have been checked or detained on occasions since 1999.
5. He said that after the incident with the Basij he spent a brief initial period in hiding in Iran and was then smuggled into Turkey on 24^th December 2011 by an agent whom he paid. Other agents took him to Istanbul and, from there, by air to Tanzania where he arrived on 30^th December 2011. He had obtained a visa for Tanzania.
6. He then travelled to Zambia, where he stayed for a few days. Then he flew with an agent to London Heathrow airport on 5^th January 2012. He did not claim asylum on entering the UK, but was taken by the agent by train to Liverpool.
7. He says he was held at a house in Liverpool which he was not allowed to leave. He was told to remain in a room whilst his papers were organised before being transferred further. He says he was told by the agent that he could only claim asylum in Canada, and while in Liverpool had to pay a further $2,500.
8. He then travelled back with the agent to Heathrow Airport in order to travel on to Canada. He was arrested at Terminal 3 in possession of a false French passport attempting to board a flight to Canada. When taken to the police station at the airport he was found to be in possession of $5,500 cash. He claimed asylum there for the first time.
9. In interview with the police he was represented by a solicitor. He had the assistance of a Farsi interpreter. He says he told the solicitor the full circumstances of his fleeing Iran and his arrival in the UK. The solicitor put forward a prepared statement; otherwise he made no comment to questions put.
10. In the prepared statement he admitted arriving in the UK five days earlier, having fled Iran because his life was in danger. He said he was fleeing to Canada to get as far away from Iran as possible. He said he had not claimed asylum on his initial arrival in the UK as he did not know what to do and had been told to follow the agent's instructions.

Immigration and Asylum Act 1999 and the Guilty Plea

11. The Appellant says that he pleaded guilty not having been advised by his solicitor or his counsel of any potential defence that he might have had under Section 31 of the 1999 Act which gives effect to Article 31 of the Refugee Convention 1951.
12. The Appellant has waived privilege in relation to his previous legal advisers. It is clear from a consideration of the contemporaneous documentation and letters from the solicitors instructed and counsel who appeared before the Crown Court that although the Appellant had given an account which was potentially capable of raising the defence under Section 31, he had been given no advice about his entitlement to the protection of that section, and had been told that he had to plead guilty to the charge.
13. The Crown accepts that the Appellant's previous legal representatives failed to advise him about the possibility of availing himself of the Section 31 defence and that they should have done so. It is clear from the judgment of this court in R v Makuwa [2006] EWCA Crim 175 that it is open to anyone charged with an offence under Section 4 of the Identity Documents Act 2010 to raise an issue that he or she is entitled to the protection of Section 31.
14. Section 31 of the Act provides as follows:

"31(1) It is a defence for a refugee charged with an offence to which this section applies to show that, having come to the United Kingdom directly from a country where his life or freedom was threatened (within the meaning of the Refugee Convention), he –

(a) presented himself to the authorities in the United Kingdom without delay;

(b) showed good cause for his illegal entry or presence; and

(c) made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.

(2) If, in coming from the country where his life or freedom was threatened, the refugee stopped in another country outside the United Kingdom, subsection (1) applies only if he shows that he could not reasonably have expected to be given protection under the Refugee Convention in that other country…

(6) "Refugee" has the same meaning as it has for the purposes of the Refugee Convention.

(7) If the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is taken not to be a refugee unless he shows that he is."

15. As Makuwa shows, to avail himself of a Section 31 defence the Appellant would need, initially, to satisfy an evidential burden that he was a refugee (i.e. a person "who has left his own country owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion"). That wording appears in the Refugee Convention, Article 1.
16. If a Defendant satisfies the evidential burden the Crown would have to prove that he was not a refugee.
17. However, this initial part of Section 31 has to be read subject to a point raised by Section 31(7) and considered below.
18. If the Crown fails to disprove that the Defendant was a refugee, it then falls to a Defendant to prove on the balance of probabilities (a) that he did not stop in any country in transit to the United Kingdom or, alternatively, that he could not reasonably have expected to be given protection under the Refugee Convention in countries outside the United Kingdom in which he stopped; and, if so: (b) to prove that he presented himself to the authorities in the UK without delay; (c) to show good cause for his illegal entry or presence in the UK; and (d) to prove that he made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.
19. In R v AM and Others [2010] EWCA Crim 2400 the court stated that it was critical that those advising Defendants charged with an offence to which Section 31 of the 1999 Act might apply should make clear the parameters of the defence (including the limitations and potential difficulties) so that the Defendant can make an informed choice as to whether or not to advance it.
20. It is common ground that there was a failure to give such advice to this Appellant, although he had advanced factual matters capable of raising such a defence. Thus, when he tendered his guilty plea, he had not made an informed choice as to that plea.
21. This court recognised in Boal [1992] 95 Cr App R 272 that a guilty plea tendered in circumstances where a possible line of defence has been overlooked, may be one which the court will be prepared to set aside on appeal if the circumstances are such that the court regards the conviction as unsafe. See also R v AM & Others (above), at paragraphs 11 to 14.
22. That, however, is in no way conclusive of this appeal. It is necessary for us to consider whether had the applicant availed himself of the Section 31 defence, there were good prospects of it succeeding.
23. In Boal (above), the court said:

"Only most exceptionally will this court be prepared to intervene in such a situation. Only, in short, where it believes the defence would quite probably have succeeded and concludes, therefore, that a clear injustice has been done."

24. In Dastjerdi [2011] EWCA Crim 365 at paragraph 10 those words were repeated. We note that in AM & Others (above), although the court cited Boal at paragraph 13, at paragraph 27 it spoke in terms of "no reasonable prospect of a defence under Section 31 succeeding".

The First-Tier Tribunal's Decision

25. There have been developments in the Appellant's case since he was sentenced at the Crown Court. Having made a claim for asylum on the day of his arrest, the Appellant went through an asylum screening interview on 15^th March 2012, and then an asylum interview on 24^th April 2012. A deportation order was signed on 28^th August 2012 and the Appellant's asylum and human rights applications were refused on 28^th August 2012.
26. The Appellant appealed those decisions to a First-Tier Tribunal (Immigration and Asylum Chamber). At the hearing the Appellant gave evidence and was cross-examined. He was supported by Dr Juliet Cohen, a forensic physician specialising in victims of torture and Sheri Laizer, an in-country specialist on Iran. Some supportive documentary evidence was also provided.
27. On 25^th October 2012 the First-Tier Tribunal upheld the deportation order and dismissed the Appellant's appeal under the Refugee Convention and under Articles 2 and 3 ECHR. It also dismissed the Appellant's claim for humanitarian protection and acknowledged that an appeal under Article 8 ECHR was not pursued.
28. The decision of the First-Tier Tribunal is, of course, in no way binding upon us. However, that decision may have consequences by reason of the provision of Section 31(7), and it can inform our assessment of the prospects of the Appellant on any retrial at the Crown Court were we to quash his conviction.
29. The standard of proof before the Tribunal is a standard lower than a balance of probabilities. The standard in asylum cases in relation both to the likelihood of persecution and the establishment of past and future events is a reasonable degree of likelihood or a real risk that the applicant could be persecuted for a Convention reason if returned to his country of nationality.
30. In addition, the Tribunal, in accordance with practice, directs itself that great care must be taken before rejecting as incredible the account of an anxious and inexperienced asylum seeker, and this can only be done when justified in the circumstances of the case.
31. The decision of the First-Tier Tribunal is a closely reasoned analysis of the evidence given by this Appellant and his witnesses. The Tribunal accepted his account of detention and torture in 1999, but rejected claims that he had been subjected to repeated detentions thereafter and, importantly, that he had had to flee following an incident outside his shop in December 2011. It found that the Appellant had fabricated this incident and gave a number of reasons. It found that he had decided to seek a better life in the West. It found that he had not been forced to flee to Turkey illegally as opposed to leaving lawfully using his own passport.
32. Although Dr Cohen's evidence to the effect that the Appellant was suffering from post-traumatic stress disorder was accepted as having been given in good faith, and although it was accepted that he had been detained and tortured in 1999, Dr Cohen had conceded that the credibility of the Appellant was a matter for the Tribunal. The Tribunal did not accept his evidence of more recent ill-treatment or incidents affecting him.
33. Ms Dickason-Mitra, the Appellant's counsel, urged us to view the Tribunal's decision as having been predicated upon or seriously influenced by the fact that the Appellant had pleaded guilty to the offence in the Crown Court. We reject that argument. It is clear from reading the decision that the Tribunal's findings were based on a close analysis of the evidence in the case rather than the fact of the guilty plea.
34. Having made findings adverse to the credibility of the case put forward by the Appellant, the Tribunal commented that the Appellant had been convicted of an offence involving deception of immigration authorities. This does not support counsel's argument. It is an undisputed fact that the Appellant must have practised deception on various immigration authorities during his journey; it is the deception that matters, not the conviction, and in any event the true question is whether there was a justification which could relieve the Appellant of the consequences of his admitted deception.
35. We are therefore satisfied that it is appropriate to have regard to the Tribunal's decision in assessing the Appellant's prospects under Section 31 on any retrial. After all, the Tribunal is a properly constituted judicial body. Its members have particular specialist experience in dealing with matters pertaining to immigration and asylum. The Appellant was able to deploy his full arguments and call relevant witnesses. The evidence was fully tested. Both parties made their respective submissions, and a fully reasoned judgment was reached.
36. As already stated, paragraph 31(7) provides if the Secretary of State has refused to grant a claim for asylum made by a person who claims that he has a defence under subsection (1), that person is taken not to be a refugee unless he shows that he is.
37. Ms Dickason-Mitra submitted that this provision had no effect at all on the initial situation established as to a Section 31 defence in Makuwa (above). Her contention was that if the matter were remitted for retrial, the Appellant would merely have to satisfy an evidential burden in relation to the question of whether he was a refugee, and if he did so, the Crown would have to disprove that contention. Ms Dickason-Mitra says that this is demonstrated by the use of the word "shows" in Section 31(7) which is the same verb used in Section 31(1).
38. The Crown, however, argues that Section 31(7) should be read as imposing a burden of proof on the balance of probabilities on the Defendant to show that he is a refugee. It argues that once the Secretary of State has refused to grant a claim for asylum, the situation is different from that pertaining in a situation where a defendant appears before a criminal court in the absence of such a decision.
39. Mr Douglas-Jones drew support from Makuwa (above), at paragraph 25, where the court, in holding that Section 31(1) imposed an evidential burden on a Defendant in relation to refugee status, contrasted the position with the situation described in Section 31(7):

"The fact that the statute casts a burden on the Defendant under these circumstances to show that he is a refugee tends to support the conclusion that he does not bear that burden under other circumstances."

40. We agree. Were Section 31(7) as the Appellant contends, merely to reiterate a requirement to satisfy an evidential burden, even when the Secretary of State had refused an asylum claim, the provision in Section 31(7) would be wholly redundant. It plainly is not, and is apt to cover the situation where there has already been due consideration of the applicant's claim to refugee status on the merits.
41. True it is that the word "show" or "shows" is used in Section 31(1) and (2), but in our judgment it is being used in a neutral way without defining the standard of proof. As Makuwa indicates, in Section 31(1) the word "show" covers both the situation where there is an evidential burden on the applicant and also where he has to prove matters on the balance of probabilities.
42. Ms Dickason-Mitra submitted that a jury would not necessarily take the same view of the Appellant and his experts as the Tribunal did. She appeared to submit that the Tribunal findings should not be afforded weight because it would have been a sceptical audience hearing the matter in the context of a deportation appeal. We do not think that this is the correct approach. What we must do is analyse the prospects of success on any retrial as stated above.
43. Ms Dickason-Mitra also laid some stress on the fact that the Appellant would, at trial, have the support of his two experts. The difficulty with that submission is that the assessment of the Appellant's case would depend principally on his own credibility. Whilst the Tribunal accepted that his account of what happened in 1999 was credible and thus consistent with Dr Cohen's evidence, it was unable to accept his account of events in more recent times which he said had caused him to leave Iran.
44. Neither of the two experts could assist to any great extent in relation to that matter. Each had conceded to the Tribunal below that the assessment of the Appellant's credibility in that respect was not for them, but for the Tribunal. At the hearing below the Secretary of State was able to point to a number of considerations which called into question the Appellant's account. Those were accepted by the Tribunal and formed part of its detailed reasons. There is no reason to think that prosecuting counsel at trial would not make the same or similar points to good effect.
45. It should be remembered that the Appellant failed on what may be called the refugee question before the Tribunal, even though the Tribunal was applying a standard below the balance of probabilities, and exercising the additional caution referred to. The Appellant's failure to satisfy that relatively low threshold before the Tribunal which, as will be remembered, made a positive finding of fabrication against him, shows us that even if the evidential burden standard initially imposed by Section 31(1) were to apply, the Appellant would be unlikely to satisfy it, and that in any event the Crown would have strong prospects of disproving it. If that were so the defence under Section 31(1) would fail.
46. This analysis applies without invoking Section 31(7) at all. If, as we have concluded, that subsection operates to impose a balance of probability burden on the Appellant in relation to refugee status, the Appellant's prospects of success are considerably further diminished.

Our Conclusion

47. We return to the approach which this court must take. We should remind ourselves that to go behind a guilty plea is an exceptional step. In our judgment, whether we ask whether the defence would quite probably succeed or whether we put the question in terms of there being a reasonable prospect of a Section 31 defence succeeding, we are quite satisfied for the reasons given above that this Appellant would not satisfy either test in relation to refugee status were this matter to be retried.
48. That finding is in relation to the primary issue of whether he was a refugee. As Section 31 shows, there are other requirements which a Defendant must show on the balance of probabilities in order to make good his defence. Those provisions were generically referred to at the hearing before us as delay provisions. The Tribunal made no specific finding adverse to the Appellant in relation to those matters, and even if it had, we would not have concluded that a jury would necessarily have rejected the Appellant's case relating to his intention to go to Canada after stops in intermediate countries.
49. As was accepted by the House of Lords in R v Asfaw [2008] UKHL 31, [2008] 1 AC 1061, a person who is genuinely in transit does not necessarily lose the protection of the Refugee Convention and thus of Section 31. The question of whether a person was genuinely in transit and/or acted promptly in presenting himself to the authorities and making a claim for asylum is plainly a fact-sensitive one.
50. True it is that the Tribunal made a finding that the Appellant, as an Azeri, could reasonably have claimed asylum, if he needed to, in Turkey. We recognise that there is force in the Respondent's argument that this was a finding of a specialist Tribunal. However, we have concerns arising from the lack of information before us on the point, and the absence of information as to the reasons underlying concessions made in other cases before this court where individuals have fled from Iran via Turkey. In those circumstances, and not without hesitation, we are unwilling to dismiss the Appellant's prospects on this specific ground.
51. However, those considerations only arise if the Appellant could surmount the initial hurdle in relation to the question of whether he was a refugee or not. Accordingly, they cannot avail him.
52. For these reasons we conclude that the circumstances for regarding this conviction as unsafe after the Appellant's plea of guilty are not established. It follows that the appeal must be dismissed.